State v. Krieger

                                       71

Argued and submitted September 13, 2018, affirmed August 19, 2020, petition
             for review denied February 4, 2021 (

)


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    CRAIG ANDREW KRIEGER,
                       Defendant-Appellant.
                     Lane County Circuit Court
                        211020252; A163710
                                   

     In this criminal case, defendant assigns error to the denial of his motion to
dismiss for lack of a speedy trial, arguing that the six-year pretrial delay violated his state and federal constitutional rights to a speedy trial. Defendant also
argues that the delay violated his statutory right to a speedy trial and that the
trial court erred in concluding that the exemption in ORS 135.748(1)(c) applied,
because the phrase “fails to appear” applies only to voluntary absences and not
absences that are a result of a defendant’s inability to appear. Held: Defendant’s
rights under Article I, section 10, of the Oregon Constitution and his rights under
the Sixth Amendment to the United States Constitution were not violated. With
respect to defendant’s statutory argument, because the text, context, and legislative history of ORS 135.748(1)(c) does not reveal that the legislature intended
to require a voluntary act, the trial court did not err in rejecting defendant’s
statutory speedy-trial claim.
    Affirmed.



   Karrie K. McIntyre, Judge.
   Sara F. Werboff, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Jeff J. Payne argued the cause for respondent. Also on
the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
   Before Ortega, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.*
   POWERS, J.
   Affirmed.
______________
   * Egan, C. J., vice Garrett, J. pro tempore.
72                                                      State v. Krieger

          POWERS, J.
          In this criminal case, defendant appeals from a
judgment of conviction for driving under the influence of
intoxicants (DUII), ORS 813.010, and giving false information to a police officer, ORS 162.385. Defendant assigns error
to the trial court’s denial of his motion to dismiss for lack of
a speedy trial. Defendant argues that the six-year pretrial
delay violated both his statutory right to a speedy trial, and
his state and federal constitutional rights to a speedy trial.
For the reasons explained below, we hold that the trial court
did not err in denying defendant’s motion to dismiss and,
accordingly, we affirm.
         We review a trial court’s denial of a defendant’s
motion to dismiss for lack of a speedy trial for legal error
and we are bound by the trial court’s findings of fact if they
are supported by the record. State v. Johnson, 

, 

 (2007), cert den, 

 (2008). A
trial court’s factual findings “concerning the length and reasons for the delay, as well as the type, level, and cause of any
anxiety that defendant suffered, are binding if supported
by evidence.” 

 Whether those factual findings support
constitutional or statutory speedy-trial violations presents
a question of law. See State v. Rohlfing, 

,

 (1998) (reviewing for errors of law a statutory
speedy-trial challenge under former ORS 135.747 (1997));
Johnson, 

 (reviewing for errors of law under
a constitutional speedy-trial challenge). We state the undisputed facts consistent with those standards.
         In August 2010, defendant was stopped and cited for
DUII and giving false information to a police officer. Both citations ordered defendant to appear in court on September 10,
2010. However, at the time defendant was stopped for a
DUII there was a New York warrant for defendant’s arrest
on a second-degree assault charge. Based on that warrant,
the officers arrested defendant, he waived extradition on
the warrant, and defendant was extradited to New York.1
On September 9, the day before he was scheduled to appear

    1
      At the time, defendant was also subject to a warrant from Georgia. The
record, however, does not indicate that any action was taken on that warrant.
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in court, the state charged defendant by information with
misdemeanor DUII and two counts of giving false information to a police officer. As a result of his extradition, defendant was not present for his arraignment on September 10,
and, because he failed to appear as directed by the citations,
the trial court issued a bench warrant. See ORS 133.060(2)
(authorizing a trial court to issue a warrant when a defendant fails to appear as directed by a criminal citation).
         In January 2012, defendant sent a letter to the Lane
County Circuit Court explaining that he was incarcerated
in New York with an expected release date in August 2013.
In his letter, defendant asked whether he could resolve his
pending Oregon case with a pre-plea offer or a telephonic
appearance. Defendant received no response. In July 2012,
defendant wrote a second letter to the trial court and again
requested a pre-plea disposition. Defendant informed the
court that he had “no objection to pleading guilty by mail,”
and further requested “that the Judge lift the warrant.”
There is no record that the trial court ever responded to
defendant’s letters. The record does not contain any information about defendant’s whereabouts after his presumed
release from incarceration in New York sometime in August
2013, however, defendant was arrested on the Oregon warrant in August 2016.
         Before trial, defendant filed a motion to dismiss
this case on speedy trial grounds, asserting his rights under
ORS 135.746,2 the state constitutional right to a speedy trial
embodied in Article I, section 10, of the Oregon Constitution,3
and his rights secured by the Sixth Amendment to the
United States Constitution.4 He argued that the six-year

    2
      ORS 135.746 provides, in part:
        “(1) Except as provided in ORS 135.748:
        “(a) A trial in which the most serious charge alleged in the charging
    instrument is designated by statute as a misdemeanor must commence
    within two years from the date of the filing of the charging instrument.”
    3
      Article I, section 10, provides that, “No court shall be secret, but justice
shall be administered, openly and without purchase, completely and without
delay, and every man shall have remedy by due course of law for injury done him
in his person, property, or reputation.”
    4
      The Sixth Amendment provides, in part, “In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial[.]”
74                                                        State v. Krieger

delay in prosecuting him violated ORS 135.746(1)(a) and that
the delay was caused by the state because it failed to file a
detainer to prevent defendant’s extradition.5 Defendant also
argued that the length of the delay was excessive and that
he was prejudiced by the delay under both the state and the
federal constitutions. In response, the state argued that the
time between defendant’s arraignment in 2010 and when he
was served with the bench warrant in 2016 was excluded
from the two-year period required by ORS 135.746(1)(a) by
operation of ORS 135.748(1)(c).6 Regarding defendant’s constitutional arguments, the state argued that the delay was
not excessive, that defendant caused the delay, and that
defendant did not show prejudice.
        The trial court denied defendant’s motion in a written order concluding:
         “THE COURT FURTHER FINDS that ORS 135.748
     (1)(c) applies, and thus the commencement of trial was
     timely under ORS 135.746.
        “THE COURT FURTHER FINDS that neither the
     Defendant’s State nor Federal Constitutional rights to [a]
     speedy trial have been violated by the delay on the record
     herein.”
(Uppercase in original.) After a stipulated facts trial, the
court found defendant guilty, and defendant subsequently
filed this appeal.
         On appeal, defendant renews his arguments that
the six-year delay in prosecution violated his statutory
right to a speedy trial, as well as his state and federal constitutional rights to a speedy trial. Generally, we would
    5
      Defendant also argued that ORS 135.748(1)(c) applies only after the trial
court sets a trial date; however, defendant does not renew that argument on
appeal, and we therefore do not address it.
    6
      ORS 135.748(1)(c) provides:
        “(1) All applicable periods of elapsed time as follows are excluded from
    the time limits described in ORS 135.746:
        “…
        “(c) A period of time between a scheduled court appearance at which
    the defendant fails to appear and the next scheduled court appearance other
    than an appearance that occurs for the purpose of addressing a warrant
    resulting from the defendant’s failure to appear.”
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address—as a prudential matter—the statutory challenge
before reaching either of the constitutional issues to resolve
the case on the narrowest ground possible. See, e.g., Dept. of
Rev. v. River’s Edge Investments, LLC, 

, 

 (2016) (citing Wallace P. Carson, Jr., “Last Things
Last”: A Methodological Approach to Legal Argument in
State Courts, 19 Willamette L Rev 641, 643-45, 654 (1983)
(advocating for a legal analysis in sequence beginning with
administrative rules, then statutes, then state constitution,
then federal law, then federal constitution)). For speedy trial
claims, however, we reverse that usual order of analysis
and address constitutional claims before statutory claims
given the difference in remedy. See Johnson, 

(explaining that “[w]e do so because a defendant who prevails on a constitutional speedy trial claim is entitled to dismissal with prejudice,” whereas a defendant who prevails on
a statutory speedy trial claim “is entitled only to dismissal
without prejudice”).7
          We address defendant’s state constitutional claim
first. See, e.g., State v. Velykoretskykh, 

, 707
n 2, 

 (2015) (“Under Oregon court’s ‘first things
first’ doctrine, we have an obligation to address state constitutional law claims before federal ones.”). Under Article I,
section 10, we consider three factors in evaluating a speedy
trial claim: (1) the length of the delay; (2) the reasons for
the delay; and (3) the resulting prejudice to the defendant.
State v. Mende, 

, 

 (1987). “The
first factor—the length of the delay—‘serves as a triggering
mechanism. If the time taken to bring an accused to trial
is substantially greater than the average, inquiry into the
remaining two factors is triggered.’ ” State v. Chelemedos,

, 

, rev den, 

 (2017)
(quoting Mende, 

). If, however, “the delay is

    7
       Although the court in Johnson analyzed an earlier version of the speedy
trial statute, former ORS 135.747 (2011), repealed by Or Laws 2013, ch 431, § 1,
the same principles for discussing defendant’s constitutional claims first are still
applicable. That is, like its predecessor, a violation of the speedy trial statute,
ORS 135.746, results in a dismissal without prejudice. See ORS 135.752 (“If a
trial is not commenced as required by ORS 135.746, the court shall order the
charging instrument to be dismissed without prejudice unless the court finds
on the record substantial and compelling reasons to allow the proceeding to
continue.”).
76                                           State v. Krieger

manifestly excessive and unreasonable such that it shocks
the imagination and conscience, the delay is presumptively prejudicial,” and establishes an Article I, section 10,
speedy-trial violation, regardless of the other two factors.
Id. (internal quotation marks omitted). Where there is no
presumptively prejudicial delay, a defendant may demonstrate prejudice to warrant the remedy of dismissal of the
charges in three ways: (1) excessive pretrial detention,
(2) anxiety and concern, or (3) impairment of the defense.
State v. Tiner, 

, 

 (2006), cert den,

 (2007). With respect to the third type of prejudice, a “defendant must show that the delay caused a reasonable possibility of prejudice to the defendant’s ability to
prepare a defense.” Id. at 555; see also State v. Ivory, 

, 

 (1977) (“We conclude that in cases
where inquiry into impairment of defense is necessary, it
would be harsh to require proof with certainty. It is sufficient to show only a reasonable possibility of prejudice[.]”).

         As an initial matter, defendant does not assert that
the six-year delay was presumptively prejudicial. State v.
Harman, 

, 

 (2002) (holding
that the five-year, seven-month delay in bringing the defendant to trial on a DUII charge “was not so shockingly long
that dismissal is required” without looking at the other factors). Thus, we examine the remaining two factors, viz., the
reasons for the delay and the prejudice to defendant created
by the delay.

         Defendant asserts that the delay was substantially
longer than average, not attributable to him, because he had
no practical ability to return to Oregon to face the charges,
and that he was prejudiced by the delay. He acknowledges
that he was released from incarceration in 2013 and was
aware of the Oregon charges, but argues that the state took
no action to procure his attendance in court. Even assuming
defendant is correct that some length of the delay in this
case can be attributed to the state, we disagree that defendant established a significant degree of prejudice to warrant dismissal. See Johnson, 

 (“In determining
whether a defendant’s constitutional right to a speedy trial
has been impaired sufficiently to warrant dismissing the
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charges against him or her, a court also must consider the
prejudice to the defendant.”).

         Defendant’s arguments concerning prejudice are
narrow. He does not assert that excessive pretrial detention
on these charges caused prejudice and he does not claim
impairment of his defense. Rather, defendant contends that
he suffered stress and anxiety as a result of the delay. His
generalized argument of stress and anxiety is not supported
by any evidence beyond that expected in the resolution of
any criminal charge. See State v. Dykast, 

,

 (1985) (noting that “[m]ost criminal prosecutions cause stress, discomfort and interference with a normal life”). Without establishing the necessary prejudice, we
cannot conclude that defendant’s rights were violated under
Article I, section 10. See State v. Bayer, 

,

, rev den, 

 (2009) (concluding that,
even if the delay was “substantially greater than average,”
the defendant did not demonstrate sufficient prejudice to
warrant dismissal). Accordingly, after evaluating the length
of delay with both the reason for the delay and the prejudice
to defendant, we reject his state constitutional claim.

         Given our conclusion under Article I, section 10, we
similarly conclude that defendant’s rights under the Sixth
Amendment were not violated. In assessing a speedy trial
claim under the Sixth Amendment, “a court considers the
three factors relevant to the state constitutional analysis
(length of the delay, reasons for the delay, and the prejudice that results from the delay) and also the defendant’s
diligence in asserting the right to a speedy trial.” Bayer,

. Here, we conclude that the additional reason—defendant’s lack of diligence in attempting
to resolve the warrant after he was released from custody—
weighs against any Sixth Amendment speedy-trial violation. Although defendant did write to the trial court in an
attempt to resolve his case while he was incarcerated, it is
undisputed that defendant took no action to assert his right
to a speedy trial upon his presumed release in August 2013.
That three-year delay between his release and his arrest
on the Oregon warrant weighs heavily against concluding
that there was a federal constitutional violation. Therefore,
78                                               State v. Krieger

in addition to the absence of prejudice to defendant, we
conclude that the state did not violate defendant’s Sixth
Amendment right to a speedy trial.
         Having addressed defendant’s state and federal
constitutional speedy-trial claims, we turn to his statutory
claim. ORS 135.746(1)(a) mandates that, “[e]xcept as provided in ORS 135.748,” a trial for a misdemeanor offense
“must commence within two years from the date of the filing
of the charging instrument.” In turn, ORS 135.748 excludes
the period of time between a defendant’s scheduled court
appearances:
        “(1) All applicable periods of elapsed time as follows
     are excluded from the time limits described in ORS 135.746:
        “…
        “(c) A period of time between a scheduled court appearance at which the defendant fails to appear and the next
     scheduled court appearance other than an appearance that
     occurs for the purpose of addressing a warrant resulting
     from the defendant’s failure to appear.”
Therefore, the period of time between a defendant’s failure
to appear at a scheduled court appearance and the next
scheduled court appearance is not counted toward the two-year statutory time limit in ORS 135.746(1)(a).
          Defendant argues that the trial court erred in concluding that ORS 135.748(1)(c) applied because he was incarcerated in New York and had no practical ability to appear
in Oregon. Specifically, defendant contends that, according
to the text, context, and legislative history of ORS 135.748
(1)(c), the phrase “fails to appear,” for purposes of tolling the
speedy-trial time limit applies only to voluntary absences
and not absences—like defendant’s—that are the result of a
defendant’s inability to appear. Defendant asserts that “failure to appear” is a legal term, that occurs when a litigant
“is absent from a proceeding without explanation or excuse.”
Thus, according to defendant, “fails to appear,” “requires
that the nonappearance, at a minimum, be the result of a
voluntary act on the part of the defendant.”
       In response, the state first argues that defendant’s
argument regarding ORS 135.748(1)(c) is unpreserved. Further,
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even if it is sufficiently preserved, the text, context, and
legislative history of ORS 135.748(1)(c) does not require a
“voluntary” act. In particular, the state notes that, “other
sections of ORS 135.748 explicitly require an intentional or
deliberate act by a defendant whereas ORS 135.748(1)(c) does
not.” Additionally, the state argues that the statute’s legislative history refutes defendant’s interpretation of the statute.
         Before turning to the merits of the parties’ dispute,
we first address preservation. See Peeples v. Lampert, 

, 

 (2008) (explaining the prudential
principles underlying the preservation requirement, which
include giving “a trial court the chance to consider and rule
on a contention, thereby possibly avoiding an error altogether or correcting one already made, which in turn may
obviate the need for an appeal”). The state remonstrates
that defendant did not advance before the trial court the
argument that he now asserts on appeal regarding ORS
135.748(1)(c) requiring a “voluntary” act. Indeed, neither
party focused their arguments precisely on the statutory
interpretation of ORS 135.748(1)(c) before the trial court. In
responding to defendant’s motion to dismiss, however, the
state argued that the proper application of ORS 135.748(1)(c)
foreclosed defendant’s speedy trial claim. Thus, the correct
interpretation of ORS 135.748(1)(c) certainly was before the
trial court, and indeed the trial court specifically ruled on
the applicability of that provision. Accordingly, we conclude
that defendant’s statutory argument is sufficiently preserved. See State v. Robinson, 

, 199, 

 (2017) (considering the defendant’s new statutory arguments on appeal even though the “defendant’s arguments
to the trial court did not give that court the opportunity
to consider the precise interpretation of [the statute] that
defendant presse[d] on appeal”). Further, when construing a
statute, we are “responsible for identifying the correct interpretation, whether or not asserted by the parties.” Stull v.
Hoke, 

, 

 (1997).
        Accordingly, we turn to the merits. As outlined
above, defendant asserts that, for that time to be excluded
under ORS 135.748(1)(c), a defendant’s failure to appear in
court must be voluntary and not because of a defendant’s
“physical inability to appear.” Defendant does not assert
80                                                        State v. Krieger

that the legislature intended the phrase “fails to appear” to
require a culpable mental state such as knowingly; rather,
defendant asserts that the legislature intended the phrase
to encompass a voluntary act.8
         That argument presents a question of statutory
interpretation: When a defendant “fails to appear” for a
scheduled court proceeding as that phrase is used in ORS
135.748(1)(c), must that failure be “voluntary” for the elapsed
time to be excluded from the time limit in ORS 135.746? To
ascertain the meaning of ORS 135.748(1)(c), we determine
the legislature’s intent by examining the text, context, and
any pertinent legislative history. See State v. Gaines, 

, 

 (2009) (explaining the statutory
interpretation framework). In construing the text of a statute, we do not “insert what has been omitted” or “omit what
has been inserted.” ORS 174.010.
         The phrase “fails to appear” is not defined by statute, therefore, we presume that the legislature intended the
plain meaning of the phrase. State v. Gonzalez-Valenzuela,

, 

 (2015) (“Without a statutory
definition, ‘we ordinarily look to the plain meaning of a statute’s text as a key first step in determining what particular
terms mean.’ ” (Quoting Comcast Corp. v. Dept. of Rev., 

, 

 (2014).)). The term “fail” has two
relevant definitions: (1) “to neglect to do something : leave
something undone : be found wanting in not doing something” and (2) “to leave some possible or expected action
unperformed or some condition unachieved.” Webster’s Third
New Int’l Dictionary 814 (unabridged ed 2002). Both definitions define “fail” as falling short of an action that is anticipated to be achieved; however, neither definition appears
to suggest whether that failure be voluntary or involuntary.
The applicable definition of “appear” is “to come formally
    8
       As we understand defendant’s argument, defendant would import the voluntariness requirement to ORS 135.748(1)(c), but not the culpable mental state
requirement in criminal liability statutes. See ORS 161.095 (to impose criminal
liability, a person must perform “conduct which includes a voluntary act or the
omission to perform an act which the person is capable of performing” and act
with a “culpable mental state”). A voluntary act in turn is defined as “a bodily
movement performed consciously.” ORS 161.085(2). Thus, defendant argues that
ORS 135.748(1)(c) requires a “bodily movement performed consciously,” but does
not require a culpable mental state.
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before an authoritative body.” Id. at 103. Read together, the
phrase “fails to appear” in ORS 135.748(1)(c) simply means
that the defendant did not show up at a scheduled court
appearance. Further, there is nothing about the ordinary
meaning of “fails to appear” that suggests that the legislature intended for it to require a voluntary act on the part of
the defendant.
          Defendant also argues that “failure to appear” is a
legal term of art, citing a definition in Black’s Law Dictionary.
We are not persuaded. First, as defendant acknowledges,
the entry for “failure to appear” and the cross-reference to
“nonappearance” does not appear in the edition of the Black’s
Law Dictionary that was available at the time the legislature enacted ORS 135.748.9 Given that temporal difficulty,
the definition in Black’s Law Dictionary cannot shed light on
what the legislature intended when it enacted ORS 135.748
(1)(c). See State v. Clemente-Perez, 

, 

 (2015) (“We consult dictionaries in use at the time of the
legislature’s enactment as an aid in interpreting the words
of the statute.”). Second, and more fundamentally, although
the phrase “failure to appear” has an entry in a legal dictionary, that fact alone does not mean that the legislature
intended the phrase “fails to appear” to carry a specialized
meaning as a term of art. The entry for “failure to appear” is
cross-referenced to the definition of “nonappearance,” which
in turn, is defined as a “party’s unexplained and unexcused
absence from a proceeding before a tribunal despite being
summoned[.]” Black’s Law Dictionary 713, 1212 (10th ed
2014). There is nothing about that entry or the definition of
“nonappearance” that suggests, much less demonstrates, that
the legislature intended ORS 135.748(1)(c) to carry a voluntariness requirement when considering whether a defendant
“fails to appear” at a scheduled court appearance.
        Defendant’s argument does not fare any better
when looking at the statute’s context. Context includes other
provisions of the same statute, as well as related statutes.
    9
      The entry for “failure to appear” does not appear until the tenth edition of
Black’s Law Dictionary, which was released in May 2014. The legislature enacted
ORS 135.748 several months earlier in March 2014. Defendant acknowledges
that the earlier edition of Black’s Law Dictionary is “less useful than the current
version,” but maintains that it does not refute his argument.
82                                            State v. Krieger

Northwest Natural Gas Co. v. City of Gresham, 

, 

 (2016). As explained below, the context of
ORS 135.748(1)(c) also does not support defendant’s interpretation that the legislature intended to require a voluntariness requirement in ORS 135.748(1)(c).
         First, although some exclusions appear to require a
“voluntary act,” other exclusions do not impose a voluntariness requirement. Compare ORS 135.748(1)(d) (“defendant
is outside this state and resists being returned to this state
for trial”); and ORS 135.748(1)(e)(A) (“defendant’s location
is unknown” and defendant “has attempted to avoid apprehension or prosecution”); with ORS 135.748(1)(a)(D) (defendant is “[u]nable to appear by reason of illness or physical
disability”). Thus, what the foregoing shows is that, if the
legislature had intended a defendant’s failure to appear for
purposes of ORS 135.748(1)(c) to include a voluntary act, it
knew how to so indicate but chose not to do so.
         Second, although ORS 135.748(1)(f) could be read to
be supportive of defendant’s argument, it would require us to
rely on legislative silence, which generally is not dispositive.
In ORS 135.748(1)(f), the legislature intended to exclude the
period of time in which a “defendant is on trial or engaged
in court proceedings in an unrelated matter, whether in the
same court or a different court, and was therefore physically unavailable for trial.” On one hand, the inclusion of the
phrase “physically unavailable” in subsection (1)(f) suggests
that the absence of a similar phrase in ORS 135.748(1)(c)
signals that the legislature knew how to specifically address
whether a defendant was physically available or unavailable
for purposes of the speedy trial statute. Thus, the exclusion
of similar language in ORS 135.748(1)(c) could suggest that
the legislature did not intend for that statute to capture situations where a defendant was “physically unavailable” to
appear in court. On the other hand, we are appropriately
cautious in reading too much into the legislature’s silence on
a defendant being “physically unavailable” or voluntariness
in ORS 135.748(1)(c). See State v. Rainoldi, 

,

 (2011) (noting that because legislative silence
can give rise to competing inferences—that the legislature
did not intend anything in particular, or that the omission
was purposeful—it is generally not a dispositive indicator of
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intent). Thus, although ORS 135.748(1)(f) could lend support
to defendant’s argument, we cannot conclude without more
that it fully addresses the legislature’s intent on whether
ORS 135.748(1)(c) requires a voluntary act.
        Third, the statute authorizing a trial court to issue
a warrant when a defendant does not appear as required
by a criminal citation further provides context to the interpretation of ORS 135.748(1)(c) because it contains similar
language. ORS 133.060(2) provides:
        “If the cited person fails to appear at the time, date and
    court specified in the criminal citation, and a complaint or
    information is filed, the magistrate shall issue a warrant of
    arrest, upon application for its issuance, upon the person’s
    failure to appear.”
Like ORS 135.748(1)(c), there is no textual indication that
the legislature intended the phrase “fails to appear” to contain a voluntariness requirement. Importantly, however, if
defendant’s argument were correct that the phrase “fails to
appear” encapsulates a voluntariness requirement, such an
interpretation would curtail a trial court’s ability to issue
warrants when a defendant does not show up in court as
required by a criminal citation. The more natural reading,
however, is that a trial court is not required to make an
inquiry into the voluntariness of the defendant’s failure to
be present in court before issuing a warrant under ORS
133.060(2). That reading, then, appears consistent with the
interpretation that does not require voluntariness for purposes of the speedy trial exemption in ORS 135.748(1)(c). In
both instances, it is the fact of the defendant’s nonappearance that matters without regard to the circumstances—
such as voluntariness or involuntariness—that form the
basis of that nonappearance.10

     10
        To the extent that defendant’s argument relies on the criminal liability
statutes—such as ORS 162.195 (failure to appear in the second degree); ORS
162.205 (failure to appear in the first degree); ORS 164.845 (arrest for unauthorized cutting or transport of trees)—all of which utilize the phrase “fails to
appear” to criminalize the failure to appear in court, we conclude that those statutes do not provide persuasive context for how the legislature intended to define
“fails to appear” in ORS 135.748(1)(c). Unlike in the speedy trial statutes, the
legislature explicitly stated in ORS 161.095 that for criminal liability statutes
“[t]he minimal requirement for criminal liability … includes a voluntary act.”
There is no equivalent textual mandate in ORS 135.748.
84                                               State v. Krieger

          Finally, a review of the legislative history supports
an interpretation that voluntariness is not a requirement
of the phrase “fails to appear” as it is used in ORS 135.748
(1)(c). As we explained in State v. McGee, 

,
807 n 5, 

, rev den, 

 (2019):
     “The Oregon Department of Justice (DOJ) and Oregon
     Criminal Defense Lawyers Association (OCDLA) worked
     together to enact the new speedy-trial statutes. See
     Testimony, Senate Committee on Judiciary, SB 1550,
     Feb 13, 2014 (statement of OCDLA representative Gail L.
     Meyer). Both DOJ and OCDLA testified that the speedy-trial law would exempt all delays caused by defendants. See
     

 …”

(Emphasis in original.) Notably, DOJ and OCDLA agreed
that, “[i]f the accused were to be responsible for delays,
whether intentionally or not, the bright-line timeframe is
tolled during that period.” Testimony, Senate Committee on
Judiciary, SB 1550, Feb 13, 2014 (statement of OCDLA representative Gail L. Meyer). In other words, even if a defendant
did not intentionally cause the delay, the applicable period
of time is nonetheless excluded. Defendant argues that the
legislature’s use of “intentionally,” addresses only whether
the legislature “intended to require ‘intentional’ conduct on
the part of a defendant,” and does not address whether the
legislature intended to require a voluntary act. We decline
to read the legislative history that narrowly. Both DOJ and
OCDLA classify a defendant’s failure to appear for a court
proceeding broadly, as a delay caused by a defendant, that—
regardless of the reason—is excluded from the time limit. See
Testimony, Senate Committee on Judiciary, SB 1550, Feb 24,
2014 (statement of DOJ Legislative Director Aaron Knott)
(“Any time caused by the defendant is not counted against
the two or three year time period. Exclusions include those
caused by a failure to appear ….”). The legislative history
indicates that the legislature contemplated instances where
a defendant may not necessarily be at fault for the delay—
such as when a defendant is “[u]nable to appear by reason of
illness or physical disability,” or when a “defendant’s location
is unknown” and “cannot be determined”—but the legislature chose to equally exclude all delays caused by defendant.
ORS 135.748(1)(a)(D), (1)(e)(B). Furthermore, the legislative
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history does not suggest either a voluntariness requirement
or that the legislature was using a term of art when discussing what it means when a defendant “fails to appear” in this
context.
         In short, although the delay in this case is substantially longer than average, ORS 135.748(1)(c) categorically
tolls the statutory speedy-trial clock when a defendant fails
to appear at a scheduled court appearance. That is, the
exclusion applies regardless of the circumstances surrounding a defendant’s failure to appear. The legislature, of course,
is free to amend the statutory speedy-trial framework if it
determines that the current framework inadequately balances the various interests at stake including defendants,
the public, victims, and witnesses in prompt adjudication of
criminal charges. See ORS 174.010 (“[T]he office of the judge
is simply to ascertain and declare what is, in terms or in
substance, contained [in the construction of a statute], not
to insert what has been omitted[.]”).
         Accordingly, because the text, context, and legislative history of ORS 135.748(1)(c) does not reveal that the legislature intended to require a voluntary act, the trial court
did not err in rejecting defendant’s statutory speedy-trial
claim.
        Affirmed.